Nithari killings: Supreme Court upholds acquittals of both accused

A bench headed by Chief Justice of India (CJI) Bhushan R Gavai passed the order endorsing the findings of the Allahabad High Court in October 2023

New Delhi

The Supreme Court on Wednesday upheld the acquittal of Surendra Koli and Moninder Singh Pandher in 12 cases of murder linked to the Nithari killings. (Representative photo)

The Supreme Court on Wednesday upheld the acquittal of Surendra Koli and Moninder Singh Pandher in 12 cases of murder and rape linked to the Nithari killings, junking the appeals filed by the Central Bureau of Investigation (CBI) and the victims’ families.

A bench headed by Chief Justice of India (CJI) Bhushan R Gavai passed the order endorsing the findings of the Allahabad High Court in October 2023 that acquitted them. Koli will remain in jail as he is serving life imprisonment in one of the Nithari killings cases, where his conviction was upheld by the top court in 2011.

To be sure, Pandher and Koli were charged in 16 cases for the killing of young girls between 2005 and 2007. While the trial court convicted Koli in 13 cases, Pandher was convicted in two of the 13. Pandher has been acquitted in all cases against him, while in one of the 13 cases, Koli’s conviction was upheld by the top court in 2011.

On Wednesday, the CBI, represented by additional solicitor general (ASG) Rajkumar Bhaskar Thakare, contended that the high court refused to believe the discovery of skulls and bones outside the house where Koli was working as a servant.

As the ASG opened the submissions describing the case as “one of the darkest crimes in history”, the bench, also comprising justices SC Sharma and K Vinod Chandran, said, “Don’t try to prejudice the court by using such expressions. Just tell us what is the perversity in the high court judgment.”

The CBI lawyer contended that the high court disbelieved the confessional statement of Koli, considering that he was in the custody of the police and the possibility of him being tortured. He said that the trial court, which convicted Koli in 13 cases while acquitting him in three, had extensively considered the evidence presented by the CBI.

In response, the court told Thakare that, being a seasoned criminal lawyer, he should know that any recovery made during the investigation should be supported by a statement under Section 27 of the Evidence Act, which relates to recovery made pursuant to a statement recorded by an accused in police custody.

Thakare told the court that the recovery of skulls, bones, slippers and clothes of the victims could not be planted by anyone. He urged the court not to go by the high court’s insistence on recovery not being consistent with the Section 27 provision, but rather go by the recovery as a fact under Section 8 of the Evidence Act, which constitutes motive or preparation for any crime.

The bench said, “If Section 27 statement is not recorded, then the recovery should be thrown into the dustbin. The high court has disbelieved the recovery on that ground.”

As Thakare sought to take the court through the evidence on record, the bench insisted, “We will take up the appeal only if you show any perversity or impossibility in the high court order.”

The HC had held the recovery against Koli to be inadmissible in law, in the absence of any disclosure statement, non-specification of the time, place and contents of disclosure, absence of independent witnesses and contradictory version of contents of information furnished. The high court order of October 16, 2023 said, “We hold that prosecution has failed to prove the information or disclosure furnished by the accused and consequently the discovery of bones, skulls or skeletons…cannot be read in evidence against the accused appellant under Section 27 of the Evidence Act. The prosecution has failed to prove this circumstance against the accused.”

The high court described the entire investigation to be “botched up” as basic norms of collecting evidence were brazenly violated.

On Wednesday, CJI Gavai told the law officer, “Show us one judgment that any recovery made without recording of section 27 is admissible. The judgment of the high court has followed this established rule of law. If you tell us to follow otherwise, nearly 100 judgments passed by me may have to be rendered per incuriam (legal term which means order passed in ignorance of law).”

Senior advocate Geeta Luthra, appearing for the father of one of the victims, told the court that the case requires an elaborate hearing. She said that in 2011, based on the same set of evidence and confession of the accused, the top court had upheld the conviction of Koli. She pointed out that the evidence presented by the prosecution before the trial court showed the culpability of the accused and, to this extent, urged the court to consider setting aside the HC’s acquittal.

The crime took place in Nithari, a village adjoining the upscale satellite town of Noida. The CBI found that Koli lured girls to the house, sexually assaulted them and indulged in cannibalism. The prosecution had also discovered the weapon used to kill the girls.

In July 2024, the top court issued notice on CBI appeals and directed that the entire case record from the trial court be shared in digital form with the lawyers appearing for both sides. Incidentally, while senior advocate Yug Mohit Chaudhary appeared along with advocate Payoshi Roy for Koli, they were not called upon to make submissions as, at the end of a hearing that lasted for nearly half an hour, the court dismissed the appeals.